Gillespie v. Gilmore

• Decision Date: 28 February 1974
• Docket Number: No. 3--673A70,3--673A70
• Citation: 307 N.E.2d 480,159 Ind.App. 449
• Parties: Corrine GILLESPIE, Plaintiff-Appellant, v. Robert W. GILMORE and Walter P. Chapala, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 480

307 N.E.2d 480

159 Ind.App. 449

Corrine GILLESPIE, Plaintiff-Appellant, v. Robert W. GILMORE and Walter P. Chapala, Defendants-Appellees.

No. 3--673A70.

Court of Appeals of Indiana, Third District.

Feb. 28, 1974.

Hilbert L. Bradley, Gary, for plaintiff-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for defendants-appellees.

HOFFMAN, Chief Judge.

This is an appeal by plaintiff-appellant Corrine Gillespie from a judgment denying her request for an order mandating defendant-appellee Robert W. Gilmore, Judge of the City Court of Michigan City, Indiana, to grant her request for a trial by jury and enjoining defendant-appellee Walter P. Chapala, deputy prosecuting attorney of LaPorte County, Indiana, from further prosecution by trial without a jury of charges pending against Gillespie in the City Court of Michigan City, Indiana.

Three issues are presented for review in this appeal:

1. Is this action for mandate improperly brought in the mane of Gillespie alone, rather than in the name of the State on the relation of Gillespie?

2. Does Gillespie have the right to a trial by jury of the pending misdemeanor charges in the City Court of Michigan City, Indiana?

3. Is mandate available to compel an inferior court to grant a request for trial by jury?

ISSUE 1. Prior to the adoption of the Indiana Rules of Procedure the form of an action seeking a writ of mandate was controlled by IC 1971, 34--1--58--1 (Burns Code Edition), with provides, in pertinent part, as follows:

'Writs of mandate in the circuit and superior courts of this state are hereby abolished, and the causes of action heretofore remedied by means of such writs shall hereafter exist and be remedied by means of complaint and summons in the name of the state on relation of the party in interest, in the circuit, superior and probate courts of this state, as other civil actions, and shall be known as actions for mandate.'

During the period in which this provision was in effect it was held to be mandatory. However, the enactment and adoption of the Indiana Rules of Procedure on January 1, 1970, repealed and superseded all procedural statutes and rules in conflict therewith, including but not limited to those expressly repealed by IC 1971, 34--5--1--3 (Burns Code Edition). State v. Bridenhager (1972), 257 Ind. 544, 279 N.E.2d 794. Accordingly, the form of action for seeking a writ of mandate is now controlled by Rule TR. 17(A)(2), Indiana Rules of Procedure, IC 1971, 34--5--1--1, which provides, in part:

'When a statute provides for an action by this state on the relation of another, the action may be brought in the name of the person for whose use or benefit the statute was intended.'

Since Rule TR. 17(A)(2), supra, unequivocally abolishes the former State ex rel. action provided for in IC 1971, 34--1--58--1, supra, and elsewhere, and Gillespie's action was commenced on March 23, 1973, after the effective date of the Indiana Rules of Procedure, this action was properly brought in the name of the interested party, Corrine Gillespie.

ISSUE 2. Gillespie was charged by two affidavits with violation of IC 1971, 35--1--104--13, Ind.Ann.Stat. § 10--2317 (Burns 1956)--allowing minors to play games; and IC 1971, 35--1--104--14, Ind.Ann.Stat. § 10--2318 (Burns 1956)--allowing minors to congregate in billiard room. The statutory punishment for each offense is a fine of not less than five nor more than fifty dollars, to which may be added imprisonment in the county jail or workhouse for not less than ten days nor more than six months. Therefore, the charged offenses are clearly misdemeanors according to IC 1971, 35--1--1--1, Ind.Ann.Stat. § 9--101 (Burns 1956) ¹, and for this reason appellees contend that Gillespie has no right to trial by jury. This contention is, however, not consistent with Indiana law.

Art. 1, § 13, of the Constitution of Indiana provides, in part, as follows:

'In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury * * *.'

This provision makes no distinction between felonies and misdemeanors or between degrees of misdemeanors in guaranteeing the right to a jury trial.

In State ex rel. Rose v. Hoffman, Judge (1949), 227 Ind. 256, 85 N.E.2d 486, the Supreme Court of Indiana, relying on Art. 1, § 13 of the Constitution of Indiana issued a writ of mandate ordering the trial court to grant a trial by jury to a defendant charged with contributing to the delinquency of a minor, a misdemeanor punishable by a fine not to exceed five hundred dollars to which may be added imprisonment for a term not to exceed six months (IC 1971, 35--14--1--1, Ind.Ann.Stat. § 10--812 (Burns 1956)). In Bolkovac v. State (1951), 229 Ind. 294, 98 N.E.2d 250, our Supreme Court affirmed this position and at 299 of 229 Ind., at 252 of 98 N.E.2d, stated:

'The right to a trial by jury as well as the right 'to be heard by himself and counsel' are both contained in § 13 of Article 1 of the Constitution of Indiana. There is no doubt that an accused has the right to a trial by jury in a misdemeanor case. State ex rel. Rose v. Hoffman, Judge, 1949, 227 Ind. 256, 85 N.E.2d 486. The language of the section, 'In all criminal prosecutions,' includes prosecutions for misdemeanors.' (Footnote omitted.)

Thus, when Gillespie properly filed her request for trial by jury at the time of her...